When in Doubt, Protest

A Concise Guide to Washington State Protests.

The right to protest an award on the state or local level is typically subject to each state’s specific governing statutes and regulations. In Washington state, bid protests under the competitive sealed bidding process may be submitted by an aggrieved party to challenge a contract award. An aggrieved party is a bidder that has a substantial chance of receiving the award, an economic interest, and standing to challenge the award. Typically, if the second lowest bidder is aware of a material irregularity or informality in the lowest bid, the second lowest bidder may submit a written bid protest. When in doubt, protest—deadlines are unforgiving.

This article provides a general overview of the public works bidding protest procedures and remedies available to unsuccessful bidders for competitively bid projects in Washington state. The bid protest procedures and remedies available are time-sensitive, so urgency and immediate attention are particularly important.[1] Again, when in doubt, protest. Hesitation can lead to your protest not being considered because it may be deemed untimely. In the world of protests, it is the company that hesitates that often loses.

Three Important Steps for Successful Washington State Protests

1. Washington Statute (RCWA 39.04.105):

First, RCWA 39.04.105, Written protests—Notice of contract execution, provides bidders the opportunity to request copies of the bids the municipality received for the project within two business days of the bid opening. This request for copies of all bids, when timely made, buys a protesting bidder a little time to prepare a written protest because the municipality must wait two “full business days” after providing the requested copies of bids received before the municipality can execute a contract for the subject project.[2]

Once the requested bids are received, the protesting bidder has only two full business days to make a written protest. If the written protest is timely, the municipality cannot execute a contract for the project with any bidder other than the protesting bidder “without first providing at least two full business days’ written notice of the municipality’s intent to execute a contract for the project.”[3]

RCWA 39.04.105 reads as follows:

1. Within two business days of the bid opening bidder may request copies of the bids the municipality received for the project. The municipality shall allow at least two full business days after providing bidders with copies of the bids before executing a contract for the project.

2. Once a written bid protest is received, the municipality must not execute a contract for the project with any bidder (other than the protesting bidder) unless the municipality first provides two full business days written notice of intent to execute a contract for the project, so long as the written notice of protest is submitted no later than:

1. 1. Two full business days after the bid opening if no request is made for copies of the bids received for the project or
   2. Two full business days after timely requested copies of bids for the project are provided by the municipality.

Note: Business days and full business days excludes intermediate Saturdays, Sundays and legal holidays.[4]

2. Key to Protests: Solicitation (i.e., the invitation to bid or request for proposals):

Second, always consult the bid solicitation or request for proposals—it may provide additional requirements, guidance, or other key information regarding bid protests (e.g., requirements and methods for making and delivering a written protest). Although the solicitation cannot contradict RCWA 39.04.105, the solicitation may include additional requirements and/or be a gap-filler to the procedural requirements of the statute.

3. Final Protest Option – Injunctive Relief in Court:

Lastly, after the statute and solicitation administrative protest options have been exhausted, and if the municipality has not granted the protest, the final option is injunctive relief to temporarily halt the award of the project while the bid protest is considered by a Washington state court.[5] Again, time is of the essence, so when in doubt protest to the court.

Injunctive relief will generally consist of preparing a motion for a temporary restraining order (“TRO”) and preparing other documents (i.e., summons, complaint, petition, etc.) that are required to commence the court action together with the TRO motion.

Subsequently, if the TRO is granted, the next step would be to request the court to grant a preliminary injunction and/or request a full hearing (or trial) to determine whether the party/protestor is entitled to permanent injunctive relief.[6] This permanent injunction results in the corrective action requested by the protestor.

1. 1. 1. File Before Contract Executed

The initiating process to commence the court action must be completed after the contract is awarded but before the contract is executed and signed by another bidding party.[7] The discussion here only covers the basics, and the above listed procedural steps have a critical timeline.  Therefore, an attorney should be consulted.  When in doubt, protest—delay can be fatal to the timeliness of a protest.      

1. 1. 2. Caution Regarding Local Rules

This discussion of injunctive protest relief is based upon general Washington state wide rules and case law. Many Washington state superior courts, however, have local rules governing TROs and preliminary injunctions. Local rules should also be consulted, as necessary.[8] Consult your trusted protest legal counsel.

When in Doubt, Protest in Washington State

The key point in either an administrative/statutory protest in Washington state or a protest seeking an injunction in court after the administrative process is complete is that when in doubt, protest. Protests are one type of matter where haste does not make waste. Protest early and protest often to get opportunities for more work.

If you have questions, please contact the Smith Currie Oles Washington State bid protest team of Trevor Lane (thlane@smithcurrie.com) and Howard Roth (hwroth@smithcurrie.com). Remember, when in doubt, protest.

[1] A useful tool for identifying bid protest procedures on a state-by-state basis, is the AGC’s Construction State Law Matrix, published by the Associated General Contractors of America. See Chapter 24. See https://www.agc.org/industry-priorities/contracts-law/state-law-matrix.

[2] RCWA 39.04.105.

[3] RCWA 39.04.105(2) (emphasis added).

[4] RCWA 39.04.105(1).

[5] See RCWA 7.40.020.

[6] See CR 65. Injunctions.

[7] See BBG Group, LLC v. City of Monroe, 96 Wn. App. 517, 521, 982 P.2d 1176 (1999).

[8] See CR 83. Local Rules of Court.